21. Providing Financial Transaction Information

[22-2(A) KCCR 597, 2008Hun-Ba132, September 30, 2010]

In this case, the Constitutional Court held constitutional the part of "a court order to produce evidence" in Article 4 Section 1 Proviso Item 1 of the 'Act on Real Name Financial Transactions and Guarantee of Secrecy,' which allows provision of financial transaction information when there is a court order.

Background of the Case

Petitioner is a party in a civil action. While the case was pending, the court ordered a bank with which the petitioner had an account to produce evidence that could prove the petitioner's banking transactions by relying on Section 1 Proviso Item 1 of the 'Act on Real Name Financial Transactions and Guarantee of Secrecy'. Upon receipt of this order, the petitioner filed a motion to request for a constitutional review of the aforementioned provision, but the motion was denied. Subsequently, the petitioner filed this constitutional complaint.

Provision at Issue

Act on Real Name Financial Transactions and Guarantee of Secrecy

Article 4 (Guarantee of Secrecy of Financial Transactions)

(1) No person working for financial institutions shall not provide or reveal information or data concerning the contents of financial transactions (hereinafter referred to as "transaction information") to other persons unless he receives a request or consent in writing from the holder of a title deed (in case of trust, meaning a truster or beneficiary), and no person may request a person working for financial institutions to provide transaction information: Provided, That the same shall not apply to any of the following cases in which the said transaction information is requested or provided to the minimum limit necessary for the purpose of use thereof:

1. Provision of transaction information by a court order to produce evidence, or by a warrant issued by a judge;

Summary of the Decision

In a unanimous opinion, the Constitutional Court held constitutional the part of "a court order to produce evidence" in Article 4 Section 1 Proviso Item 1 of the 'Act on Real Name Financial Transactions and Guarantee of Secrecy' (hereinafter, the Instant Provision), which allows provision of financial transaction information by a court order for the following reasons.

The Instant Provision allows a person working for a financial institution to provide or reveal information or data concerning financial transactions or a person to request a person working for a financial institution to produce such transaction information, if there is a court order to produce such evidence and the said transaction information is requested or provided to the minimum limit necessary for the purpose of the use. Considering the legislative purpose of the Instant Provision, the requirement of reasonable balance between the scope of transaction information exceptionally allowed to be provided and the purpose of such provision, and the fact that in the event that anyone intends to request the transaction information pursuant to the Instant Provision, he/she should do so at a specific financial institution by means of the standard form as stipulated by the Financial Services Commission containing the trade period subject to the request, legal grounds for the request, purpose of the use of the information, contents of the transaction information requested and so on, it is easily expected that 'the minimum limit necessary for the purpose of the use' means 'the minimum contents and period necessary for resolving legal disputes.' Also, as 'the minimum contents and period necessary for resolving legal disputes' can be defined in various ways depending on the circumstances, it is technically impossible to set one single criteria to decide the meaning by legislation, and thus, it is desirable that the meaning be decided by the judgment of the court as the main agent in resolving legal disputes. Therefore, the Instant Provision does not violate the rule of clarity or the rule against blanket delegation under the Constitution.

The legislative purpose of the Instant Provision, which is to fairly solve legal disputes based on substantive truth proven by objective evidence, is legitimate and the means to achieve the purpose is also appropriate. The Act on Real Name Financial Transactions and Guarantee of Secrecy also stipulates criminal punishment for violating the related provisions while limiting the scope of information to be provided to 'the minimum necessary for the purpose of the use' and requiring anyone who intends to request such information to do so at a specific financial institution with a standardized form. Meanwhile, the party concerned can appeal against the court order. And, while it seems inevitable that the decision on what would be 'the minimum limit necessary for the purpose of the use' should be rendered by the court, there is no other alternatives to achieve the legislative purpose of 'fair resolution of legal disputes.' Therefore, the Instant Provision does not violate the rule of the least restrictive means. Further, it is hard to conclude that the disadvantage to the holder of personal information is greater than the public interest in 'fair resolution of legal disputes.' Therefore, the Instant Provision does not infringe on the right to self-determination over personal data and information.